The ECJ confirmed on 14 September 2010, that communications from in-house lawyers within their organisation are not covered by legal professional privilege under EU law in the context of European Commission competition investigations. The Akzo judgement upholds the Court’s much criticised 1982 AM&S judgement.
The judgement highlights the care which in-house lawyers should demonstrate when communicating within their organisations. Despite the fact that most in-house lawyers are members of professional bodies and comply with codes of professional ethics, the ECJ held they were not sufficiently independent from their employers to benefit from legal professional privilege.
The main practical implication of the Akzo judgement is that advice given by an in-house lawyer to their organisation on competition law will not be exempt from disclosure to the EU Commission. The Law Society of Scotland has made it clear that, in its view, under Scots law, the advice of in-house lawyers continues to enjoy the same protection as the advice of solicitors working in private practice.
Case C-97/08 - Akzo Nobel NV and others v Commission